Carlos Rodriguez Quinones v. U.S. Atty. General ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 3, 2006
No. 05-12053 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
BIA No. A78-976-916
CARLOS RODRIGUEZ QUINONES,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of an Order of the
Board of Immigration Appeals
_________________________
(January 3, 2006)
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
PER CURIAM:
Carlos Rodriguez Quinones, a native and citizen of Cuba, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order affirming without
opinion the immigration judge’s (“IJ”) order of removal. The IJ determined that
Quinones had abandoned his request for discretionary relief for adjustment of
status to that of a lawful permanent resident, pursuant to the Cuban Adjustment
Act, Pub.L. No. 89-732, 80 Stat. 1161 (1966) (reproduced as historical note to 8
U.S.C. § 1255), when he failed to timely file his application for adjustment of
status.
Quinones argues that his due process rights were violated when the IJ
ordered him removed after he missed the filing date for his adjustment-of-status
application. Quinones avers that he had been proceeding pro se and did not
understand the date he had to file his application. Thus, Quinones argues that his
due process right to a full and fair hearing on his claims was violated, and that he
was substantially prejudiced because he has no other way to adjust his status.
“Due process requires that aliens be given notice and an opportunity to be
heard in their removal proceedings.” Fernandez-Bernal v. U.S. Att’y Gen., 257
F.3d 1304, 1310 n.8 (11th Cir. 2001); see also Ibrahim v. INS, 821 F.2d 1547,
1550 (11th Cir. 1987) (“Due process is satisfied only by a full and fair hearing.”).
We have previously ruled that the failure to file a complete asylum
application may result in a finding of abandonment and an order of removal.
Rageevan v. U.S. Att’y Gen., No. 05-10300, 2005 WL 2224845, at *3-4 (11th Cir.
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Sept. 14, 2005); see Kuschchak v. Ashcroft, 366 F.3d 597, 604-06 (7th Cir. 2004)
(holding that IJ did not violate due process in finding that petitioner abandoned his
withholding-of-removal application when petitioner missed deadline to file). Here,
Quinones received due process. The IJ advised Quinones that he had to file an
adjustment of status application by June 4, 2003, and Quinones replied, “Okay.”
The IJ notified Quinones of his deadline to file his application approximately eight
months before the application was due, and set a hearing for September 9, 2003.
While the “presence of a competent interpreter is important to the fundamental
fairness of a hearing,” Rageevan, 2005 WL 2224845, at *3 (citations omitted),
“[a]n alien must raise objections to the insufficiency of the translation or hearing
accommodations during the proceedings . . . to demonstrate a due process
violation.” Id. (citing Soares v. INS, 449 F.2d 621, 623 (5th Cir. 1971); Valladares
v. United States, 871 F.2d 1564, 1566 (11th Cir. 1989)). Although Quinones states
that he misunderstood the date he was to file the application, the record does not
reflect that he made any mention or objection regarding any miscommunications
during the proceedings. Moreover, the one particular miscommunication Quinones
cites – which was really a misquote by the IJ in stating the year 2002, instead of
2003 – fails to state a due process violation because the IJ repeated the proper date
shortly thereafter. In addition the IJ stated quite clearly “if [the application is] not
filed on or before June 4 th of 2003 then I’m going to deem the application
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abandoned.” Because Quinones was given notice and an opportunity to be heard
and because he failed to demonstrate prejudice, there was no due process violation.
Upon a review of the record and upon consideration of the parties’ briefs, we
discern no reversible error.
PETITION DENIED.
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